Andrew Jackson lays claim to the honor of being our only commander-in-chief to have killed another man in a duel, having supposedly engaged in dozens of them before he became president. His successful 1828 campaign to oust the debonair incumbent, John Quincy Adams, is forever cemented in history as one of the most scorched-earth and cringe-worthy elections of all time. Nothing was off limits. Yet our seventh president must be scratching his head at this very moment as he polishes his musket collection, muttering to himself: “Trump said what about those judges?”
While bare-knuckle politics may be as old as the Constitution itself, our executive and legislative branches have traditionally refrained from dragging the judiciary into the combat zone as an unspoken rule. As partisan units with constituents to whom they must answer, these two branches are expected to mix it up as a precursor to forging deals, but the sanctity of our independent courts is not up for negotiation. This is particularly true when a case has not yet progressed to the court of last resort: A politician speaking out against a final ruling from the Supreme Court to appease his or her base is one thing. Openly criticizing a trial court’s ruling in a pending matter is an altogether different one.
When it comes to our federal courts, our judges are all Article III, which means they’re appointed for life. Judges are rendered defenseless by the professional canons to which they must adhere, which prohibit them from engaging in open discourse about the merits and logic of their rulings in real time, when the cases have not yet been resolved.
This all makes good sense, and it’s a system that has served us quite well for 240 years. And then came President Donald Trump. Between his harsh words for Judge Gonzalo P. Curiel in the midst of the Trump University suit and his new attacks on the “so-called judge” whose injunction put an abrupt halt to his immigration ban, Trump has made it clear once again that the old rules don’t apply to his administration.
What’s Trump’s endgame? Is this just more chest-thumping from an unconventional leader or has something more sinister been set in motion as far as the stability of the judiciary is concerned?
As with most things that have to do with politics these days, the truth is elusive. While Trump’s hair-trigger temperament and thirst for combat are defining traits, his heavy-handed style is borne from more than instinct: He doubles down on his base with each new tweet and has yet to see any backlash from his voters. It is of no real consequence that the judicial targets of his ire cannot respond. In this new post-truth world, who exactly is listening anyway?
While neither the involved judges nor the judiciary itself is directly at risk, perhaps the sinister aim is to forever cripple the fundamental notions of finality and acceptance that accompany their rulings, so that direct public backlash — particularly at the lower levels of the court system — is as common as calling your congressman on the carpet for a bad vote?
If this is indeed the aim of our new administration, the implications are dangerous. While we will always protect the independence of our judiciary when it is under attack, so, too, should we protect its ability to do business at arm’s length with the necessary level of respect and deference, even when there is legitimate disagreement over the results.
Pitting our citizens against our courts, 140 characters at a time, is no way to make a country great. It’s the precursor to a post-justice world.
Blake Shuart is an attorney and author residing in Wichita.